United States v. Donnie Curry , 482 F. App'x 781 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4958
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNIE LEE CURRY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00063-MR-1)
Submitted: May 10, 2012 Decided: May 25, 2012
Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Henderson Hill, Director, Ross H. Richardson, First Assistant
Federal Defender, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, David A. Thorneloe,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
From December 2009 through March 2010, Donnie Lee
Curry engaged in several sexually explicit on-line chats with an
undercover detective he believed to be an eleven-year-old girl.
When he attempted to meet the girl in person, Curry was
arrested. He subsequently pled guilty to one count of
attempting to entice and coerce a minor to engage in criminal
sexual activity, in violation of 18 U.S.C. § 2422(b) (2006).
The district court sentenced Curry to 168 months in prison, the
bottom of the advisory Guidelines range, and ordered that he
reimburse the United States for his court-appointed attorney’s
fees. Curry timely appeals, challenging the substantive
reasonableness of his sentence and the reimbursement order. We
affirm in part, vacate in part, and remand to the district court
for partial resentencing.
We review a sentence under a deferential abuse of
discretion standard, which requires consideration of both the
procedural and substantive reasonableness of a sentence. Gall
v. United States, 552 U.S. 38, 51 (2007). Where there is no
procedural error, and none is alleged here, we review the
substantive reasonableness, “tak[ing] into account the totality
of the circumstances.” Id. If the sentence is within the
appropriate Guidelines range, we apply a presumption on appeal
that the sentence is reasonable. United States v. Mendoza-
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Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption
is rebutted only by a showing “that the sentence is unreasonable
when measured against the [18 U.S.C.] § 3553(a) [2006] factors.”
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted).
Curry sought a sentence below the advisory Guidelines
range, citing his lack of a criminal past, his good employment
record, and the depression he suffered at the time he committed
his offense. Observing that Curry’s conduct continued over a
period of months and that he demonstrated an intent to engage in
the acts he discussed online, the court concluded that a within-
Guidelines sentence was appropriate based on the nature and
circumstances of the offense, the need to protect the community
from Curry, and the need to deter others from engaging in
similar criminal behavior.
Curry contends his sentence is substantively
unreasonable because the court failed to give adequate weight to
the reasons he cited for a variance. We disagree. The court’s
reasons for the sentence imposed were consistent with the 18
U.S.C. § 3553(a) sentencing factors and Curry’s claim that the
court should have accorded more weight to his arguments fails to
overcome the presumption of reasonableness accorded his within-
Guidelines sentence. See United States v. Jeffery, 631 F.3d
669, 679 (4th Cir.) (“[D]istrict courts have extremely broad
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discretion when determining the weight to be given each of the
§ 3553(a) factors.”), cert. denied, 132 S. Ct. 187 (2011).
Turning to Curry’s challenge to the district court’s
order directing reimbursement of court-appointed attorney’s
fees, courts are authorized to require repayment of funds for
appointed counsel upon a finding that “funds are available for
payment from or on behalf of a person furnished representation.”
18 U.S.C. § 3006A(f) (2006). We recently held, in United States
v. Moore, 666 F.3d 313, 320-24 (4th Cir. 2012), that “the
district court must base the reimbursement order on a finding
that there are specific funds, assets, or asset streams (or the
fixed right to those funds, assets or asset streams) that are
(1) identified by the court and (2) available to the defendant
for the repayment of court-appointed attorneys’ fees.” Id. at
322.
Here, as the Government concedes, the district court
failed to make the fact-finding determinations identified in
Moore. Accordingly, we vacate that part of Curry’s sentence
requiring him to pay court-appointed attorney’s fees, and remand
for resentencing as to this issue only, consistent with this
decision and our decision in Moore.
We affirm Curry’s conviction, which he does not
challenge on appeal. We affirm Curry’s sentence in all respects
except as to the direction that Curry repay court-appointed
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attorney’s fees. We vacate that portion of the judgment, and
remand for reconsideration of that issue. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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